DarkElefant Magazine

"Capturing the Moment"

Terms and Conditions

PLEASE READ THESE TERMS & CONDITIONS CAREFULLY BEFORE USING
THIS SITE.

As
used herein, "Site" refers to DarkElefant.com and other
sites on the World Wide Web (including sites designed to be accessed by
browsers using Wireless Application Protocol) originating in the United States
which are owned and/or operated by DarkElefant Inc. or its wholly-owned
subsidiaries or affiliates (collectively "DarkElefant").

These
Terms & Conditions, together with any other terms, conditions or policies
set forth elsewhere in the Site, constitute the entire agreement between you
and DarkElefant in connection with your access and use of the Site
(“Agreement”).

By
using the Site, you indicate your acceptance of these Terms & Conditions.
If you do not agree to these Terms & Conditions, you have no license to
access the Site and should leave immediately.

DarkElefant
reserves the right, in its sole discretion at any time, to change these Terms
& Conditions or impose new conditions, including, but not limited to,
adding fees and charges for use. Such changes, updates or additions shall take
effect immediately upon DarkElefant posting the most current version of the
Terms & Conditions on the site with a new Effective Date shown. All changes
in the Terms & Conditions shall be effective from the Effective Date. Your
continued use of the Site after DarkElefant posts any such changes to the Terms
& Conditions shall be deemed to constitute your acceptance of the modified
Terms & Conditions.

DarkElefant
may change, suspend or discontinue any aspect of the Site at any time,
including the availability of any feature or content. DarkElefant may also
impose limits on certain features and services or restrict your access to parts
or the entire Site without notice or liability.

All
materials published on the Site (including but not limited to articles,
photographs, images, illustrations, audio clips and video clips) are
individually protected by copyrights which are owned and/or controlled by DarkElefant
or the party credited as the provider of the material. Moreover, the selection,
coordination, arrangement and enhancement of all contents of the Site are also
copyrighted as a collective work. You shall abide by all copyright notices and
other restrictions contained in any material accessed through the Site. No
material from the Site may be copied, reproduced, republished, uploaded,
posted, transmitted, or distributed in any way, except that you may download
one copy of the materials on any single computer (or other electronic device) for
your personal, noncommercial use, and may print one hard copy of the material
on the Site for your personal, noncommercial use, provided you keep intact all
copyright and other proprietary notices. You acknowledge that you do not
acquire any ownership rights by downloading or printing copyrighted material.
Modification of the materials or use of the materials for any purpose other
than personal, noncommercial use is a violation of the respective owners'
copyrights and other proprietary rights. The use of any such material on any
other Web site or networked computer environment is prohibited. All trademarks,
service marks, and trade names are proprietary to DarkElefant or the other
designated owner of a posted mark. Elements of the Site are protected by trade
dress and other laws and may not be copied or imitated in whole or in part.

The
Site includes chat areas, message boards, e-mail forwarding, video submission
pages, contest entry pages and other interactive functions ("Forums")
which may allow feedback and submissions to DarkElefant and real-time
interaction between guests. These Forums may be run by DarkElefant or a third
party DarkElefant selects, and access to these Forums may be limited in DarkElefant’s
sole discretion only to registered guests. Registration could consist of, among
other things, identifying oneself, giving a screen name and password, and
providing personally identifiable information as well as expressly indicating,
by means of clicking on an applicable box(es), guest's acceptance of these
Terms & Conditions. Registration is subject to DarkElefant's prior approval
and your continued compliance with these Terms & Conditions. DarkElefant
reserves the right to refuse participation to any applicant or participant at
any time in our sole discretion. Multiple accounts held by the same individual
or entity are subject to immediate termination unless expressly authorized in
writing by DarkElefant (including by e-mail). You are solely responsible for
keeping your e-mail address and other contact information updated.

1.
You understand that all information, data, text, software, music, sound,
photographs, graphics, video, messages, communications or other materials,
whether publicly posted or privately transmitted, that you (a) submit to any of
the Forums or (b) through our Site, or (c) that you submit (or have submitted
in the past) to third party web sites (e.g., YouTube) and provide us with the
link to post or embed on our Site (collectively, "Submitted
Content"), are your sole responsibility. This means that you, and not DarkElefant,
are entirely responsible for all Submitted Content that you upload, post,
e-mail or otherwise transmit via the Forums or our Site, and you and you alone
are responsible for any injury to people or property (REAL OR INTANGIBLE)
caused by your creation or posting of the Submitted Content.

2.
DarkElefant does not endorse or control the Submitted Content delivered to this
Site, and has no obligation to monitor such Submitted Content. As such, DarkElefant
does not guarantee the accuracy, integrity or quality of any such Submitted
Content. However, DarkElefant reserves the right (but not the obligation) in
its sole discretion to edit, refuse to post or to delete any Submitted Content,
in whole or in part, that is in violation of these Terms & Conditions or
that it deems to be objectionable or unacceptable for any reason whatsoever.

3.
DarkElefant further reserves the right at all times to preserve any Submitted
Content or to disclose any Submitted Content as necessary to satisfy any law,
regulation or governmental request or any good faith belief that such
preservation or disclosure is necessary to (a) comply with legal process; (b)
enforce these Terms & Conditions; (c) respond to claims that any Submitted
Content violates the rights of third-parties; or (d) protect the rights,
property, or personal safety of DarkElefant, its guests and the public.

4.
You understand that by using the Site, including its Forums, you may be exposed
to Submitted Content that is offensive, indecent or objectionable. Under no
circumstances will DarkElefant be liable in any way for any Submitted Content,
including, but not limited to, for any errors or omissions in any Submitted
Content, or for any loss or damage of any kind incurred as a result of the use
of any Submitted Content posted, emailed or otherwise transmitted via the Site,
including its Forums.

5.
You understand that the comments of others displayed in connection with your
Submitted Content as used herein ("Third Party Comments"), may be
disparaging, defamatory, embarrassing, or otherwise be of an unfavorable nature
and may expose you to public ridicule, humiliation or condemnation. DarkElefant
expressly disclaims, and you expressly release DarkElefant from, any liability
for any Third Party Comments. You acknowledge and agree that DarkElefant shall
have the right (a) to include any Third Party Comments on the Site and in any
and all forms of advertising, promotion, and publicity for the Site and/or the
Submitted Content, and (b) to broadcast and otherwise exploit the Submitted
Content with or without Third Party Comments in any manner, and in any media,
whether now existing or hereafter developed.

6.
By registering, accepting these Terms & Conditions, and uploading Submitted
Content, you represent and warrant to DarkElefant the following: (a) you are at
least 18 years of age, (b) all of the information provided by you to DarkElefant
to enroll and participate in the Forums is correct and current; (c) you hold
and will continue to hold the necessary rights, including but not limited to
all copyrights, trademark rights and rights of publicity in the Submitted Content
to comply with these Terms & Conditions and applicable state and federal
laws; (d) you are the creator of the Submitted Content you upload to the Site
(or are specifically authorized to upload the Submitted Content by the
copyright holder), and did not take any of its elements from a source such as
another Web site, publication, recording, film, or video; (e) you have made any
required payments to guilds, performing rights societies, or to any other body
or group representing authors, composers, musicians, artists, and other
participants in the production of the Submitted Content, or other entities
having legal or contractual rights of any kind to payments as a result of
distribution or exhibition of the Submitted Content; and (f) you have the legal
right and authority to agree to, perform the acts required of you, and to grant
the rights and licenses described in these Terms & Conditions.

7.
It is a condition of your access and use of the Site that you do not:

a.
Restrict or inhibit any other guest from using and enjoying the Site;

b.
Harm minors in any way;

c.
Impersonate any person or entity, including, but not limited to, an employee or
representative of DarkElefant, or falsely state or otherwise misrepresent your
affiliation with a person or entity;

d.
Forge headers or otherwise manipulate identifiers in order to disguise the
origin of any Submitted Content transmitted by means of the Site;

e.
Upload, post, e-mail or otherwise distribute, publish or transmit on the Site
any Submitted Content that you do not have a right to transmit under any law or
under contractual or fiduciary relationships (such as inside information,
proprietary and confidential information learned or disclosed as part of
employment relationships or under nondisclosure agreements);

f.
Upload, post, e-mail or otherwise distribute, publish or transmit on the Site
any unlawful, harmful, threatening, abusive, harassing, invasive of another's
privacy, libelous, defamatory, obscene, vulgar, pornographic, profane or
indecent information of any kind, including, without limitation, any Submitted
Content encouraging conduct that would constitute a criminal offense, give rise
to civil liability (purely by way of example and not limitation, because it
shows you engaged in negligent or reckless behavior) or otherwise violate any
local, state, national or foreign law;

g.
Upload, post, e-mail or otherwise distribute, publish or transmit on the Site
any Submitted Content that either involves nudity (including partial or
complete nudity) of any person under age 18; exploits persons under age 18; or
discloses any personally-identifying information about persons under age 18;

h.
Upload, post, e-mail or otherwise distribute, publish or transmit on the Site
any information, software or other material which violates or infringes upon
the rights of others, including material which is an invasion of privacy or
publicity rights or which is protected by patent, copyright, trademark, trade
secret or other proprietary right, or derivative works with respect thereto,
without first obtaining permission from the owner or right holder;

i.
Upload, post, e-mail or otherwise distribute, publish or transmit on the Site
any information, software or other material which contains a virus or any other
computer code, files or programs designed to interrupt, destroy or limit the
functionality of any computer software or hardware or telecommunications
equipment, or any other harmful component;

j.
Upload, post, e-mail or otherwise distribute, publish or transmit on the Site
or in any way exploit any information, software or other material for
commercial purposes or which contains any form of solicitation (including, but
not limited to, "junk mail," "spam," "chain
letters," and "pyramid schemes"), advertising, promotion,
marketing for goods or services, or any form of lottery, sweepstakes, or
gambling;

k.
Disrupt the normal flow of dialogue, cause a screen to "scroll"
faster than other guests of the Site are able to type, or otherwise act in a
manner that negatively affects other guests' ability to engage in real time
exchanges;

l.
Interfere with or disrupt the Site or servers or networks serving the Site, or
disobey any requirements, procedures, policies or regulations of networks
connected to the Site;

m.
Intentionally or unintentionally violate any applicable local, state, national
or international law, including, but not limited to, regulations promulgated by
the U.S. Securities and Exchange Commission, any rules of any national or other
securities exchange, including, without limitation, the New York Stock
Exchange, the American Stock Exchange or the NASDAQ, and any regulations having
the force of law;

n.
"Stalk" or otherwise harass another individual; or

o.
Collect or store personal data about other individuals.

8.
By posting, uploading, transmitting, submitting, or otherwise making available
any materials (including but not limited to any text, articles, remarks, ideas,
graphics, illustrations, photos, videos, artwork, designs, audio, music, games,
comments, product concepts, advertising concepts or ideas, and suggestions for
improving or changing existing content, and any and all other content and
information) on or through the Site or Forums, regardless of how submitted
(e.g., emailed, uploaded, posted, published), such materials become Submitted
Content. By posting, uploading, transmitting, submitting, or otherwise making
available Submitted Content, you automatically and irrevocably grant (or
warrant that the owner of such rights has expressly and irrevocably granted) to
DarkElefant a royalty-free, non-exclusive, unrestricted, perpetual, worldwide,
and fully transferable, assignable, and sublicensable right and license to use,
copy, reproduce, modify, edit, alter, revise, adapt, translate, enhance,
reformat, remix, rearrange, resize, create derivative works of, move, remove,
delete, erase, reverse-engineer, store, cache, aggregate, publish, post,
display, distribute, broadcast, perform, transmit, rent, sell, share,
sublicense, syndicate, or otherwise provide to others such materials or incorporate
such materials into any form or technology now known or later developed, and
for any purpose, including commercial purposes, and to authorize others to do
so. You waive any moral rights you may have in having the Submitted Content
altered or changed in a manner not agreeable to you. You further irrevocably
grant DarkElefant a royalty-free, non-exclusive, unrestricted, perpetual,
worldwide, and fully transferable, assignable, and sublicensable license to use
your name in connection with the Submitted Content; to use the Submitted
Content for advertising and promotional purposes for ourselves or third
parties; and to otherwise exploit, benefit from and/or realize revenue from the
conduct of its business, operation of the Site, in the offering of products or
services by DarkElefant or third parties, and any and all arrangements made
with respect thereto without accounting, obligation or liability to you. Unless
expressly provided in the Agreement, you or the owner of any Submitted Content
posted, uploaded, transmitted, submitted, or otherwise made available on or
through the Site retains ownership of all rights, title, and interests in such
Submitted Content. By way of example only, this means DarkElefant might offer
your Submitted Content to third parties who, in turn, may resell such Submitted
Content, for which you may receive no credit or compensation.

9.
You warrant that any Submitted Content you post, upload, transmit, submit, or
otherwise make available, on or through the Site contains nothing that will
give rise to civil liability or otherwise violate any local, state, national or
foreign law, including nothing that is harmful, threatening, abusive,
harassing, invasive of your own or another's privacy or publicity rights,
defamatory, obscene, vulgar, pornographic, profane or indecent, or that
constitutes an infringement of anyone's patent, copyright, trademark, trade
secret or other proprietary right, or derivative rights with respect thereto.

The
purchase of any products from the Site is governed by the terms and conditions
of the sales transaction with the provider of the product. DARKELEFANT MAKES NO
WARRANTY AS TO THE QUALITY OF SUCH PRODUCTS INCLUDING, BUT NOT LIMITED TO, THE
IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. DarkElefant
does not have any responsibility for the processing or delivery of products
purchased from the Site, unless we tell you we are specifically responsible for
the sale of the item.

The
Site may contain links and pointers to Internet sites maintained by others
("Third Party Sites"). The appearance of a link does not imply DarkElefant's
endorsement. DarkElefant has not reviewed all of the Third Party Sites linked
to the Site and is not responsible for the contents of or any products or
services offered in such Third Party Sites. You access them at your own sole
risk, and you should direct any concerns regarding any Third Party Site to its
site administrator or Webmaster.

DarkElefant
licenses its brands, trademarks, and copyrighted material (“Marks”) to others
for use on goods and services ("Third Party Licensees"). The
appearance of the Marks on these products and services does not mean that these
are DarkElefant products or services. DarkElefant makes no warranty of Third
Party Licensee products or services. They are products and services offered and
sold by independent companies that qualify as Third Party Licensees. DarkElefant
is not responsible for these products or services. You purchase and use them at
your own sole risk and you should direct any concerns regarding any Third Party
Licensee products or services to the appropriate Third Party Licensee company.
If you have any questions about the contact information of the Third Party
Licensee, DarkElefant will provide contact information from its files for your
assistance.

The
Site is controlled and operated by DarkElefant from its headquarters in Los Angeles,
California, United States of America. DarkElefant makes no representation that
materials in the Site are appropriate or available for use in other locations.
Those who choose to access the Site from other locations do so on their own
initiative and are responsible for compliance with local laws, if and to the
extent local laws are applicable.

These
Terms & Conditions shall be governed by, construed and enforced in
accordance with the laws of the State of California, without giving effect to
any principles of conflicts of law, except as to any provisions which may be
governed by the laws of the United States, in which case the latter shall
govern. You agree that any action at law or in equity arising out of or
relating to these terms shall be filed only in the state or federal courts
located in Los Angeles and you hereby consent and submit to the personal
jurisdiction of such courts for the purposes of litigating any such action.

If
any provision of these Terms & Conditions shall be unlawful, void, or for
any reason unenforceable, then that provision shall be deemed severable from
this agreement and shall not affect the validity and enforceability of any
remaining provisions.

DarkElefant
may, in its sole discretion, terminate or suspend your access to all or part of
the Site for any reason, including, without limitation, failure to comply with
any of these Terms & Conditions. Upon termination, you must destroy all
materials obtained from the Site and all copies thereof, whether made under the
terms of this agreement or otherwise. In the event of termination, you are no
longer authorized to access or use the Site, and the restrictions imposed on
you with respect to materials downloaded from the Site and the disclaimers and
limitations of liabilities set forth in this agreement shall survive.

You
access and use the Site at your own sole risk. If you are dissatisfied with any
of the materials contained in the Site, or with any of these Terms &
Conditions, your sole and exclusive remedy is to discontinue accessing and
using the Site.

THE
MATERIALS IN THIS SITE AND ALL DOWNLOADABLE SOFTWARE ARE PROVIDED "AS
IS" AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. TO THE
FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, DARKELEFANT AND ANY
OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SITE DISCLAIM
ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WITH
RESPECT TO THE SITE AND ANY AFFILIATED WEBSITES WITH WHICH IT IS LINKED. DARKELEFANT
DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE CORRECTNESS,
ACCURACY, OR RELIABILITY OF THE MATERIALS, INFORMATION, OPINION OR ADVICE
PROVIDED IN OR FROM THE SITE. DARKELEFANT DOES NOT WARRANT THAT THE FUNCTIONS
CONTAINED IN THE MATERIALS WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS
WILL BE CORRECTED, OR THAT THE SITE OR THE SERVER THAT MAKES IT AVAILABLE ARE
FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.

To
the fullest extent permitted by applicable law, DarkElefant, its parent
company, subsidiaries and all officers, directors, owners, employees, agents,
information providers, affiliates, licensors and licensees (all of the
foregoing, collectively, the "Indemnified Parties") shall in no event
be liable for any claims, charges, demands, damages, liabilities, losses, or
expenses of whatever nature and howsoever arising, including without limitation
any compensatory, incidental, direct, indirect, special, punitive, or
consequential damages, loss of use, loss of data, loss caused by a computer or
electronic virus, loss of income or profit, loss of or damage to property,
claims of third parties, or other losses of any kind or character, even if DarkElefant
or the Indemnified Parties have been advised of the possibility of such damages
or losses, arising out of or in connection with the use of the Site or any Web
site with which it is linked. You assume total responsibility for establishing
such procedures for data backup and virus checking as you consider necessary,
or for your reliance on any material published or posted on the Site.

You
hereby agree to indemnify, defend and hold harmless DarkElefant and the
Indemnified Parties from and against any and all claims, charges, demands,
damages, liabilities, losses, and expenses of whatever nature and howsoever
arising (including but not limited to any legal or other professional fees and
the costs of defending or prosecuting any claim and any loss of profit,
goodwill, and any other direct or consequential loss) incurred or suffered by DarkElefant
and the Indemnified Parties, directly or indirectly, by reason of any act or
omission which you commit in breach of these Terms & Conditions (including
but not limited to your obligations, representations and warranties contained
herein) and any other terms and conditions or policies set forth elsewhere in
the Site. You shall cooperate as fully as reasonably required in the defense of
any claim. DarkElefant reserves the right, at its own expense, to assume the
exclusive defense and control of any matter otherwise subject to
indemnification by you.

Because
you have acknowledged that, at its sole discretion and for any reason, DarkElefant
may edit, refuse to post or to delete any Submitted Content that you post, in
whole or in part, and may terminate or suspend your access to all or part of
this Site, that you have granted (or warranted that the owner of such rights
has expressly granted) to DarkElefant a royalty-free, nonexclusive, perpetual
and irrevocable right and license to use, reproduce, modify, publish and
distribute any Submitted Content that you post, such materials or incorporate
such materials into any form or technology now known or later developed, and
that you have waived any moral rights you may have in such Submitted Content,
you hereby agree that if you unsuccessfully prosecute a claim against DarkElefant
and/or any of the Indemnified Parties that arises from its exercise of its
rights to edit, refuse to post or to delete any Submitted Content that you
post, to terminate or suspend your access to all or part of the Site, to use
its royalty-free, nonexclusive, perpetual and irrevocable right and license to
use, reproduce, modify, publish and distribute any Submitted Content that you
post, or seeking to recover for violation of your moral rights, you agree to
reimburse DarkElefant and/or the Indemnified Parties for all costs of defending
any such claim, including but not limited to any legal or other professional
fees.

In
any portion of the Forums or Site where registration is required, as part of
the registration process, you may select a password and a subscriber ID. You
also have to give us certain registration information, including a valid e-mail
address, all of which must be accurate and updated:

a.
You may not

(i)
select or use a subscriber ID of another person with the intent to impersonate
that person;

(ii)
use a subscriber ID in which another person has rights without such person's
authorization; or

(iii)
use a subscriber ID that DarkElefant, in its sole discretion, deems offensive.
Failure to comply with the foregoing shall constitute a breach of this
Agreement, which may result in immediate termination of your account.

b.
You shall be responsible for maintaining the confidentiality of your password,
which you will not have to reveal to any representative or agent of DarkElefant.

c.
You shall notify DarkElefant at hello@DarkElefant.com of any known or
suspected unauthorized use(s) of your account, or any known or suspected breach
of security, including loss, theft, or unauthorized disclosure of your password
or credit card information.

d.
You may share your password and subscriber ID with others, but you are
responsible for all usage or activity on your Site account, including use of
the account by any third party authorized by you to use your subscriber ID and
password. Any fraudulent, abusive, or otherwise illegal activity may be grounds
for termination of your account, at DarkElefant's sole discretion, and DarkElefant
may refer you to appropriate law enforcement agencies.

Any
software that is made available to download from the Site, including any files
or images incorporated in or generated by the software, and data accompanying
the software (collectively, the "Software"), is the copyrighted work
of the indicated author of the Software ("Author"). Use of the
Software is governed by the terms of the end user license agreement, if any,
which accompanies or is included with the Software ("License
Agreement"). A guest to the Site will be unable to install any Software
that is accompanied by or includes a License Agreement, unless he or she first
agrees to the License Agreement terms. The Author retains full and complete title
to the Software itself and all intellectual property rights therein. You may
not redistribute, sell, decompile, reverse-engineer or otherwise disassemble
the Software. DARKELEFANT MAKES NO WARRANTY AS TO THE QUALITY OF SUCH SOFTWARE
INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE.

Software
from the Site is further subject to United States export controls. No software
from the Site may be downloaded or otherwise exported or re-exported into (or
to a national or resident of) any country to which the United States has
embargoed goods. By downloading or using the Software, you represent and
warrant that you are not located in, under the control of, or a national or
resident of any such country.

The
Site contains material that may not be appropriate for children. If there is a
concern by parents that children may visit the Site, DarkElefant recommends
using a parental control software package. Some sample parental software
packages include: Net Nanny (http://www.netnanny.com),
Cyber Patrol (http://www.cyberpatrol.com),
Cybersitter (http://www.solidoak.com).
Please be advised that DarkElefant does not endorse any one parental software
package. While no parental software package replaces careful supervision of
Internet use by children, these tools can be a useful addition to your suite of
Internet applications. Please read the Site's Privacy Policy, in particular the
policy for Minors, for more information regarding the collection of personal
information from children.

DarkElefant
has a policy of responding to notices of alleged infringement that comply with
the Digital Millennium Copyright Act (DMCA), which may include removing
material claimed to be the subject of infringing activity. If DarkElefant
removes material to comply with the DMCA, we will attempt to contact the
provider of any Submitted Content so removed to enable them to make a counter
notification pursuant to sections 512(g)(2) and (3) of the DMCA. DarkElefant
makes efforts to document all notices of alleged infringement that it responds
to. A copy of the notice will be sent to a third party who will make it
available to the public. Please note that you will be liable for damages
(including costs and attorneys' fees) if you materially misrepresent that a
product or activity is infringing your copyrights.

To
file a notice of infringement, you must provide us with a written notice that
includes each of the following items:

-
Detailed identification of the copyrighted work that you believe has been
infringed.

-
Detailed identification of the material you claim infringes this copyrighted
work.

-
The statement: "I have a good faith belief that use of the copyrighted
materials described above on the allegedly infringing web pages is not
authorized by the copyright owner, its agent, or the law. I swear, under
penalty of perjury, that the information in the notification is accurate and
that I am the copyright owner or am authorized to act on behalf of the owner of
an exclusive right that is allegedly infringed."